Is the New York Times Familiar with Legal History at All?

Conn Carroll /
May 07, 2008

In their editorial today celebrating Barack Obama’s victory of Hillary Clinton for the Democratic nomination, the New York Times attacks John McCain and his promise to appoint conservative judges to the bench. They write:

Mr. McCain predictably criticized liberal judges, vowed strict adherence to the Founders’ views and promised to appoint more judges in the mold of Chief Justice John Roberts and Justice Samuel Alito. That is just what the country does not need.

Mr. McCain did not mention, of course, how the Roberts-led Court blithely overruled Congress by nullifying a key part of the McCain-Feingold campaign finance law. He did wax nostalgic about what “the basic right of property” has meant “since the founding of America.” (He did not mention that in 1789 many women could not own property and African-Americans were property, but he did criticize the idea that values evolve over time.)

Is the New York Times really this ignorant? Are they completely unaware that strict constructionism does not forbid, and in fact requires, the Supreme Court to overturn Congressional legislation when it does not conform to the Constitution? Are they completely unaware that strict constructionism depends on the ability of the people to amend the constitution? Are they completely unaware that the Supreme Court did not free the slaves or grant the women the right to vote and that constitutional amendments did those things (the 13th and 19th respectively)?

Yes, the New York Times is right when they write that “values evolve over time.” The question is how and who should decide when values have changed enough to alter the founding principles of our nation. Conservatives believe the people should decide through constitutional amendment. Liberals, and the New York Times, believe nine robed people in Washington should decide by decree. Which sounds more democratic to you?